Man, I’ve missed this. My brief foray into a new area of law was…less than thrilling.

So, I’m back. Criminal defense and happy to boot.

I have a trial coming up at the end of the month. Aggravated battery of a peace officer. I think I have a 70% chance of winning. If I lose my client is probably sentenced to probation since it’s a first time offense and he’s only accused of kicking a cop. But he will definitely be deported. That’s not a fun outcome. I’ll keep you all posted as to the outcome.

I also have a client who was picked up in a brawl in a funeral home. He wasn’t brawling, in fact, he was almost a quarter of a block away when he was stopped and arrested. The preliminary hearing for that was fantastic…15 people arrested in the melee, at least 10 lawyers standing along the wall, all nodding to each other “You’re here for the fight? Me too!” and then everyone was indicted. It was a circus.

…well, I stop writing about crime and the leader of our state goes and gets himself in more trouble than you can imagine.

I can’t imagine I’m going to add much to the indignation and anger of the citizens of Illinois. I’m also fairly agnostic as to whether he is prosecuted or not. He’s been so ineffective as a governor that it’s hardly different whether he’s under indictment or not.

Here’s what I will add. His defense strategy is smart for two reasons. First, it’s obvious he’s not going to admit to anything. A recent article in the Wall Street Journal (behind a subscription wall) noted that the Trib flubbed the story somewhat. They knew about the cooperation of John Wyma, Blagojevich’s former chief-of-staff and the Feds asked the Trib to sit on it. The Trib did so, for awhile, and then they broke the story only 24-hours before the Feds came out with the indictment…and Fitzgerald probably moved because he figured the news story blew the cover off their investigation. Essentially the Trib forced the hand of the Feds and they moved earlier than they wanted.

What did that early move result in? Well, as other local attorney’s have pointed out Blogojevich may not have broken the law…yet. And even Fitzgerald tacitly admitted it in his press conference (which I got to hear live on the radio as I was driving from court) that he was stopping a crime in progress.

Well, fraud and conspiracy to deprive the People of Illinois of the rightful services of their elected officials isn’t exactly like an armed robbery or a carjacking. The interruption means that the act wasn’t completed in any meaningful way. And I’m sure Ed Genson understands this. I’ve been pissing off my friends for days by pointing out that…well…Blogojevich didn’t get anything from these people he spoke of. Where’s the crime?

The second reason his tactic is smart is this. Blagojevich is signalling to the political elite of Illinois that he’s not turning on them. That he’s going to stick to his story of “this was all just political talk…the kind we all engage in!” He’s telling the political elite that their version of events should mirror his. One of the reasons for this, rather obviously, is that anyone engaged in discussions with Blogojevich of the nature the Feds say was illegal could also be charged with a crime. There was a lot of discussion on this point on the ISBA email forums over the last few weeks. Essentially, if you were a politician interested in the seat and Blogojevich or a member of his core group made you an exchange offer (hard cash to his wife, or a job, or something besides a direct campaign contribution which may not be illegal at all) and you didn’t report it, then you’re complicit. And Rod is letting them all off the hook by claiming he never did such a thing.

This is obviously smart since he’s going to need these people not to turn on him and run to Fitzgerald’s investigation. I don’t like the way this is actually looking. To me, Fitzgerald knew he had a slimeball on his hands and was likely to break the law at some point if he wasn’t stopped. And he knew once the Trib started running the stories of wires Blagojevich would go to ground and if any deal was made Fitzgerald would be unlikely to catch it. So he moved prematurely, knowing there would be virtually no fallout from the public for nailing a guy the general citizenry of Illinois loathes.

Sorry folks for the light posting. But just as I got into this whole thing…well, I received a new job opportunity that is going to take me away from criminal law for awhile. I would still be interested in posting around here…so I will, occasionally.

However, my employer is taking over posting on this site, Nick Albukerk. He’s a former Cook County Public Defender and a criminal defense lawyer for 15 years. I’m catching him up on the technology, but it can’t be that hard!

So, for right now, I’m taking a bit of break. I’ll be back, but not as regularly as before.

Thanks for everyone who responded to this blog, and I hope that I helped people along the way.

MarkThompson in Iowa City lays out how to do the walk and turn. I took the Illinois DUI Academy CLE course where we learned how to do all these tests…and that weekend I went to a bachelor party in Wisconsin. Needless to say, I tried out all the tests on my fellow party goers…and few of them were able to pass!

Last Thanksgiving I saw the broken glass and swept up evidence of a fatal crash only a few blocks from my house. Two young men were killed at a T-intersection on Damen Ave., at Hamlin Park, in front of the softball fields I walk the dog around.

An off-duty police officer, John Ardelean, crashed into two young (Hispanic) men from Cicero around bar close.

Now, witnesses at the bar said two things. Ofc. Ardelean did not appear to be, act or look drunk. Also, some of the shots were water. Really? He was pounding back shots of water with his buddies?

This case is simple. A Chicago Police officer was given the biggest break of his life by his own comrades. He was allowed to sober up for 6 hours prior to taking a Breathalyzer, essentially destroying evidence by letting his body process the alcohol that would have proven he was driving drunk.

Well, the Cook County State’s Attorney’s office got an earful and has decided to reinstate charges against Ofc. Ardelean. They claim that a new video, showing a longer sequence of time where Ofc. Ardelean is drinking means they have a better case. It should be noted that the judge in the preliminary hearing saw no videotape of Ofc. Ardelean drinking at all.

Ofc. Ardelean, from a defense counsel’s perspective, has a good case. Apparently numerous witnesses to back up that he was either pretending to drink, not acting drunk and did not appear intoxicated. He followed the first two rules of a DUI stop, in that he refused a field sobriety test and, technically, a Breathalyzer, although, what he really got was UNBELIEVABLE preferential treatment.

This case may have reasonable doubt written all over it. But there’s also two dead young men, a damning video tape. Ofc. Ardelean should be thinking more along the lines of Anthony Abbate rather than R. Kelly.

Any criminal defense lawyer will tell you that most days are bad for the 4th Amendment. We see bad law, bad rulings and an overall erosion of your right not to be searched and seized without probable cause every day.

So when the Illinois Supreme Court comes along and whittles a little more of it away, it’s not a surprise.

People v. Cosby is a consolidation of two cases, Cosby and People v. Mendoza. Both of these cases involve traffic stops and prolonged detentions.

Generally speaking, you cannot be held by a police officer without either reasonable suspicion or probable cause of you having done something wrong. During a traffic stop, the police officer has usually seen you do something wrong to justify the stop (I say usually because although the police ALWAYS say they saw you break a traffic law, we all know this is sometimes a convenient fiction). Therefore, the stop is justified and the duration, purpose and intrusion of the stop is justified by the criminal act observed.

So let’s say you break a traffic law, and you’re not waving a gun or a baby out a moving car window. That traffic law is usually a misdemeanor or even solely a citation, so the detention and purpose of the stop is governed by the seriousness of your actions. i.e. the police CANNOT search your car because you fail to signal. There’s no reason for the police to believe there are drugs or guns in a car because you are a poor driver.

But this is all a sham. The police, once they approach your car and look at you and your passengers, can now try to figure out a way to get inside and poke around. Here’s how they do it. They decide you look high, bloodshot eyes, shifty maneuvers in the car, fumbling with your license or insurance, the odor of marijuana, a gang affiliation sign of some kind (in Mendoza the police officers said that a red bandana hanging from the rearview mirror was a sign of gang affiliation). Whatever it takes for them to come up with “articulable” suspicions, or even better probable cause. Of course, probable cause would be direct information that a crime had been committed, which would be like seeing a gun, or a bag of weed itself.

However, let’s say the police don’t see any other criminal activity and could not justify entering your vehicle. This leaves them with one last option. Asking you.

You’d be amazed (if you’re a lawyer reading this, you are not) at how many people, with drugs / guns / dead hookers in the trunk consent to a search. And the reason they consent is the very reason the ruling in a case like Cosby is so difficult to deal with as an attorney. People consent to searches of their car when they should know better…because they don’t know better. They don’t realize that when an officer ASKS you, you get to say no. The reason people consent is because they don’t actually think that they are being ASKED they are being ORDERED.

In the case at hand, both Cosby and Mendoza were stopped for traffic citations. The officers returned paper work to the drivers then asked to search their cars. The court ruled that at this point the drivers were “stopped” again. The question was, was this one long stop, or two separate stops, one for the traffic citation, and another, separate stop, that was essentially a consensual search. Both Cosby and Mendoza agreed to let the police search their cars, turning up some crack and a gun respectively.

The court held, in a 4-3 split with some strong dissents, that the second “asking” of the drivers to search their cars were not a “seizure” within the 4th Amendment. The long and short of it, is that these drivers were free to leave and when asked if the officers could have searched the car, could have said no and been on their merry way.

No way. No way in hell did these drivers understand that, know that, or could have done that. The standard by which the law considers you, the average person, to be “seized” by the cops, is when you do not feel free to leave. Certain things the cops do make you not feel free to leave. Guns are drawn, a whole lot of them surround your car, their emergency lights and sirens are on, you are ordered to place your hands on the wheel…things like that.

What the llinois Supreme Court seems to be doing (while denying that it is doing it in the same breath) is applying the Mendenhall standards as a rigid formula for seizure. United States v. Mendenhall, 446 U.S. 544 (1980) is a Supreme Court case laying out the general parameters of when a person is “seized.” Illinois Supreme Courts have been pretty much in lockstep with U.S. Supreme Court (much to the dismay of defense lawyers) for years. Mendenhall lists factors such as 1) the threatening presence of several police officers, 2) the presence of a drawn weapon, 3) language and tone of voice that suggests compliance is necessary and / or 4) touching of a person. Mendenhall goes on to state that this is not an exhaustive list of factors regarding whether you are seized…suggesting, obviously, that other factors come into play.

Here, in each stop, there were only two officers, no touching, and depending on whom you believe, little forceful language. In the Mendoza case one officer admitted to drawing his gun, but not “displaying it” to the driver. This is unbelievable on its face.

The defense, in both cases, argued, however, that the two police officers “flanked” the vehicles in question, at night, and asked for permission to search immediately. The defense’s position is that these people in these cars simply did not feel free to leave, and the searches should have been pursuant to the safeguards of the 4th Amendment. In other words, don’t let the police get away with a fishing expedition.

The Illinois Supreme Court disagreed. The State argued, successfully, that the stop was not prolonged. Obviously as a practitioner, prolong that stop as long as possible. Get the facts out as to how long the whole thing took. In Cosby the testimony was that the officer immediately asked for permission to search and was granted it. Get this stop to take forever, and you’ve got a better motion to suppress.

The dissent states it plainly…for it is plain. Cosby could not possibly have felt free to leave. The Illinois Supreme Court rigidly applied the Mendenhall standards, while claiming it was not. Instead of looking at the totality of the circumstances, the court just felt that once the officer handed Cosby his proof of insurance back, his stop was over, and that immediately afterwards, Cosby could have just driven off.